Sending Office: Honorable Yvette D. Clarke
Sent By:
Harry.Baumgarten@mail.house.gov

Cosignors: Crowley, Velazquez, McGovern, Fudge, Clyburn, B. Thompson, Evans, Lawson, Jackson Lee, Veasey, Butterfield, Cleaver, Hastings, H. Johnson, B. Scott, Gutiérrez, Jayapal, Espaillat, Carson, Carbajal, Pallone, A. Smith, Sires, Esty,
Vargas
Deadline: Tomorrow at 10:00am

Dear Colleague:

Please join me in sending the below letter to the Archivist of the United States David S. Ferriero, asking him to deny U.S. Immigration and Customs Enforcement (ICE) the ability to destroy conduct records ahead of schedule.

The ACLU
reports
that ICE has submitted a request to the National Archives and Records Administration (NARA) seeking permission to destroy records of its own misconduct years ahead of schedule. These include records pertaining to sexual assaults, solitary confinements,
deaths in custody, and abuses that occur during regular detention and monitoring. Allowing ICE to destroy such records early would diminish the ability of individuals to safeguard their constitutional rights and the ability of Congress to maintain effective
oversight.

Please contact Harry Baumgarten on my staff at
Harry.Baumgarten@mail.house.gov
with any questions or to sign on to this letter.

Sincerely,

Yvette D. Clarke
Member of Congress

 

September __, 2017

Mr. David S. Ferriero
Archivist of the United States
National Archives and Records Administration
8601 Adelphi Road
College Park, MD 20740

Dear Mr. Ferriero,

Media accounts indicate that your office has provisionally approved a request from U.S. Immigration and Customs Enforcement (ICE) to shorten the time period by which it must maintain records pertaining to eleven types of reports, including those related
to sexual assaults, solitary confinements, deaths in custody, and abuses that occur during regular detention and monitoring.[1] We urge you in the strongest terms to rescind any provisional approval that has been
granted on the grounds that the proposed disposition is not consistent with the value of the records.[2] This will help ensure that the constitutional rights of all Americans are fully protected and allow Congress
the ability to exercise its oversight function over the Executive Branch. We understand the statutory obligation to “make provisions for the economical and efficient management of records of the federal agencies.”[3]
However, we believe that maximum deference should be given to the potential deprivation of civil liberties when they are clearly implicated in the content of records with evidentiary value in civil or criminal proceedings.

Each agency has a legal duty to maintain records in a manner that protects the constitutional rights of persons directly affected by government decisions and allows for proper scrutiny by Congress.[4] However,
shortening the maintenance period for records pertaining to sexual assaults, solitary confinements, deaths while in custody, regular detention monitoring reports, logs about people detained in ICE facilities, and communications from the public concerning abuses
weakens agency ability to achieve such goals. While a shortened Records Control Schedule may in some cases still require records to be maintained for up to 20 years, liberalizing these standards by any amount, particularly at this point in time, will eliminate
several years by which individuals and Congress will be able to meaningfully safeguard constitutional rights. This is particularly troubling given the existence of reasonable alternatives and the mandates of 44 U.S.C. § 3102.

It is also hard for us to ignore the context under which this request occurs. During the campaign, Donald Trump made numerous offensive remarks demonizing immigrants and speaking approvingly of violence.[5] He
also questioned a federal judge’s ability to rule dispassionately based upon the judge’s ethnic heritage.[6] Upon assuming power, the Administration passed a discriminatory ban on immigration from several Muslim-majority
countries without thorough review from his own Office of Legal Counsel and without notifying key cabinet officials.[7] He also recently pardoned disgraced Arizona Sheriff Joe Arpaio, who was found guilty of criminal
contempt in connection with his inhumane treatment of undocumented immigrants, without consulting the Office of the Pardon Attorney or following pre-established pardon guidelines.[8] All of this points to an alarming
trend in which the Trump Administration is callously intimidating immigrants and minority communities through a death of a thousand cuts in contravention of longstanding procedures. We view this latest request to change the Records Control Schedule as part
of this trend and strongly urge you to protect constitutional rights by mandating that the Records Control Schedule not be changed.

We also note the historical and research value of these records to future scholars and legislators. The Bush Administration created the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) following the terrorist attacks of
September 11, 2001. Over the subsequent sixteen years, immigration has become one of the core issues of American political debate. Congress twice attempted to pass comprehensive immigration reform during President Obama’s presidency and immigration itself
was one of the main issues of the 2016 presidential election. While it is difficult to predict the issues that may be significant in the future, the relatively recent government restructuring of our immigration agencies, the increased centrality of immigration
in American public debate, and strong congressional attention to this issue indicate that the treatment of immigrants will be of high historical and research value to future scholars and legislators interested in understanding our country’s actions during
this moment in time.[9] NARA should therefore recognize the full importance of these records and err on the side of preservation, rather than granting ICE the ability to destroy them early.

We recognize the challenges of your office and appreciate your years of dedicated public service under both Democratic and Republican administrations. If you have any questions, please feel free to contact Harry Baumgarten on the staff Representative Yvette
D. Clarke at Harry.Baumgarten@mail.house.gov.

Sincerely,

     Yvette D. Clarke
Member of Congress

 

 


[1] Victoria Lopez, ICE Plans to Start Destroying Records of Immigrant Abuse, Including Sexual Assault and Deaths in Custody (Aug. 28, 2017), ACLU,

https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrol-abuses/ice-plans-start-destroying-records-immigrant
;
see also 82 Fed. Reg. 37,469 and 40,171.
[2] See 36 CFR § 1225.16(c).

[3] 44 U.S.C. § 3102.

[4] 36 CFR § 1222.22.

[5] Michelle Ye Hee Lee, Donald Trump’s false comments connecting Mexican immigrants and crime (July 8, 2015), Washington Post,

https://www.washingtonpost.com/news/fact-checker/wp/2015/07/08/donald-trumps-false-comments-connecting-mexican-immigrants-and-crime/?utm_term=.a8b3c8677c05
; Fred Barbash,
That unusual Trump ‘incitement’ ruling wasn’t just about one rally but a ‘multitude’ (Apr. 3), Washington Post,

https://www.washingtonpost.com/news/morning-mix/wp/2017/04/03/the-extraordinary-trump-incitement-case-its-about-more-than-just-one-rally/?utm_term=.1249fc6d40a1
.

[6] Hanna Trudo, Trump escalates attack on ‘Mexican’ judge (June 2, 2016), Politico,

http://www.politico.com/story/2016/06/donald-trump-judge-gonzalo-curiel-223849
.

[7] Ben Mathis-Lilley, Sally Yates Implies Trump White House Tried to Keep Her From Reviewing Travel Ban Before It Was Signed
(May 8, 2017), Slate,
http://www.slate.com/blogs/the_slatest/2017/05/08/yates_implies_white_house_kept_first_travel_ban_away_from_her.html
.
[8] Andrew Rudalevige, Why Trump’s pardon of Joe Arpaio isn’t like most presidential pardons (Aug. 26, 2017), Washington Post,

https://www.washingtonpost.com/news/monkey-cage/wp/2017/08/26/why-trumps-pardon-of-joe-arpaio-isnt-like-most-presidential-pardons/?utm_term=.7062f12fa490

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Selected legislative information: Foreign Affairs, Homeland Security, Immigration
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